A proposal by one of Australia’s top police officers to use phone apps to record sexual consent has been branded “naive”.
NSW Police Commissioner Mick Fuller said the country needed to modernise ideas around “positive consent” where consent is “active and ongoing throughout a sexual encounter”.
“Intimate violence particularly against women is a real problem crime for us at the moment and we need to find a solution,” he told ABC Radio Sydney today.
Commissioner Fuller acknowledged the app might be “the worst idea I have all year”, but said COVID-19 had shown the importance of adopting technological solutions.
“If someone told me two years ago that we would have to sign in our phones every time we sat down at a restaurant, I would’ve laughed at them,” he said.
“Whether the app floats or not, I think it’s irrelevant… I think it’s about understanding that this crime is on the increase … and we need to confront it whether that’s through technology or education and training or through other ideas.”
According to recent figures from the Bureau of Crime Statistics and Research, reported sexual assaults rose by 10 per cent in 2020 with a total of 15,000 women coming forward.
Only 2 per cent of those led to guilty verdicts in court.
Commissioner Fuller admitted there would be ways people with ill intentions could manipulate the app but said starting the conversation was critical.
However, he said the app would be useful in instances where the victim was impaired and then “consent is implied by the offender”.
“It would be pretty tough to get someone to sign an app or to make a statement on an app in that case,” he said.
Commissioner Fuller said he recognised there was a lot of pushback to the idea of a consent app, but wanted to start the conversation and move on from dated ideas around consent.
“Plenty of people this morning have been criticising the app, which is good, but no one has suggested to me that this isn’t a worthy issue to be fighting for,” he said.
“The app may never see the light of day, we may never talk about the app again but I do hope we do talk about consent again.”
Catherine Lumby, a professor at Sydney University who specialises in ethics and accountability, described the idea of a consent app as “naive”.
She said the app was a quick fix and did not take into account the circumstances that surrounded sexual assaults.
‘Fundamentally what we are having now is a reckoning that a very small minority of men are opportunists, who make the decision to sexually assault women, they don’t care where, how and why they do it, they will take the opportunity and I’m sure they are more than capable of manipulating technology,” Professor Lumby said.
“They certainly wouldn’t say, ‘I’m thinking of having sex with you now, would you like to sign up to this app and say yes?””
Andrew Dyer, senior law lecturer at University of Sydney, said a consent app would do more harm than good.
“The proposal is well-intentioned [but] it would seem that the perpetrators of sexual assault might well gain more protection from this than victims,” Dr Dyer said.
“If the evidence of consent on the app came into evidence at a trial then [it] could be used against the woman to discredit her.”
He said not only would it not account for people withdrawing consent part way through sex, but it failed to account for the “subtleties” of sexual encounters.
“People commonly when they’re having sex perform a number of different acts… in this phone app, you are not necessarily saying that you consent to all acts that occur later on,” he said.
NSW Premier Gladys Berejiklian today declined to comment on the Commissioner’s proposal for the app because she hadn’t time to “digest” his plans.
She said in the past few weeks, several proposals for how to address the state’s sexual assault crisis have been put to her.
A functional sexual consent app, similar to what Commissioner Fuller has proposed, was launched in Denmark last month.
But the iConsent app hasn’t been widely adopted, with less than 5,000 downloads, according to mobile intelligence site Sensor Tower.
In November, a sweeping set of recommendations from the NSW Law Reform Commission was tabled in State Parliament, including that sexual consent shouldn’t be presumed just because a person did not physically or verbally resist.